Why a landmark opioid damage award is good news to climate change advocates

Click to play video: '‘Politicians put their money in front of our future’: Youth environmental protester'
‘Politicians put their money in front of our future’: Youth environmental protester
A protester in Grade 6 called for adults and politicians to be responsible for the environment on Aug. 30, during a youth demonstration in front of the United Nations in New York City regarding climate change. – Aug 30, 2019

Last week, an Oklahoma judge ordered Johnson & Johnson to pay more than US$570 million for “ravaging” the state, the judge’s word for the company’s role in the opioid epidemic that continues to kill hundreds of people daily.

The case is considered a bellwether for opioid litigation ongoing across 48 states, in addition to a handful of Canadian lawsuits — including a $1.1-billion proposed class action.

Also studying the Oklahoma verdict? Environmental scholars and legal experts, and sustainability advocates at the forefront of fighting climate change.

They see the verdict as fuel for lawsuits seeking to hold oil companies accountable for climate change. They are arguing or intend to argue along similar lines: both involve ongoing damages (deadly overdoses, extreme weather that kills), both are issues health organizations have classified as concerns to watch, and both involve cases in which a few big companies are accused of misleading the public about the harm their products would cause.

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Maybe, they think, litigation will provide the kick in the pants regulation has failed to deliver.

“This would be a major signal to oil companies that they need to change their ways,” says Keith Stewart, a senior energy strategist with Greenpeace Canada, which is urging the city of Toronto to sue oil companies for their role in climate change.

“Reputation, social licence, environment and social governance stuff is kind of fuzzy. Major lawsuits asking for hundreds of millions or billions in damages really focuses the mind.”

Reasons to sue

The truth is that Canada is “way behind” when it comes to tackling climate change, says Lynda Collins, a professor at the Centre for Environmental Law and Global Sustainability at the University of Ottawa.

“Litigation can, at times, be a really potent lever … and the reality is that in a market-driven economy, you don’t see significant environmental reform until we put a price tag on pollution.”

Collins was one of dozens of signatories to an open letter about climate accountability litigation in Canada earlier this summer.

“The logic is simple,” the letter reads. “Those who profit from selling harmful products should bear their fair share of the cost of the harms caused by their products.”

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Nearly a dozen lawsuits launched by U.S. cities against oil companies like ExxonMobil, Royal Dutch Shell and Chevron are winding their way through the courts.

Vancouver’s city council took a more muted approach, passing a motion in June asking the mayor to write letters to “the 20 fossil fuel companies with the highest percentage of greenhouse gas emissions to ask that they be accountable for their share of climate emergency costs.”

Those letters match requests sent by other B.C. municipalities, including Victoria, Whistler, West Vancouver and Port Moody. Both the letters and the lawsuits hit at the reality that climate change costs money.

As part of Greenpeace’s campaign to urge Toronto to sue, it broke down some of the extreme weather costs in recent years: over $850 million in insurance claims for July 2013’s record flooding and $380 million in insurance claims for the May 2018 windstorm.

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Add to that an Insurance Bureau of Canada report out earlier this year, which noted that for every dollar in insurance costs, the government is estimated to fork over $3 to deal with damages caused by severe weather.

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“For so many years, we were trying to prevent climate change, then we were trying to minimize it, and now we’re faced with the reality that it’s here and it’s going to cost a lot of money,” Collins says.

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This is not “political theatre,” Collins says.

“Climate change litigation is going to build retaining walls and it’s going to relocate people who have lost their homes due to flooding and it’s going to shore up new emergency heat shelters.

Chances for success

When the judge in Oklahoma held Johnson & Johnson liable, he said the government had successfully proven its misleading marketing campaign was a public nuisance.

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A public nuisance is a legal claim borne out of acts that endanger “the life, health, property, morals or comfort of the public or obstructs the public in the exercise or enjoyment of rights common to all.”

It is what ties the succession of opioid lawsuits with climate accountability litigation, Collins says. Public nuisance has traditionally been used to prosecute polluters — polluters, not those who manufacture pollutants. The Oklahoma case bucks that norm.

“What’s different about opioids and what’s different about climate cases is you’re going after the manufacturer of a product rather than the one that actually emits the pollution,” she says.

Stephanie Whitney isn’t sure suing oil manufacturers will be quite as easy as suing opioid manufacturers.

“It’s very difficult to quantify and attribute the environmental and social damages of those (oil) operations to any one company or group of companies within that supply chain,” says Whitney, the associate director of the Viessman Centre for engagement Research in Sustainability at Wilfrid Laurier University.

“When someone consumes opioids or takes a pill, you know where it came from because the manufacturer’s trademark is generally etched into the pill. Environmental contaminants are harder to trace: they’re often invisible and can cross geographical borders.”

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So while Whitney isn’t discounting litigation, she says, she believes “it will take more than one successful lawsuit, or even a dozen, to change cultural and mainstream attitudes towards the use of non-renewable fuel sources.”

And climate change is here and happening, a time-sensitive issue more and more people are waking up to, she says.

“We need to act on multiple fronts to be successful in creating a sustainable future.”

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While the cases may be harder to argue from a legal perspective, Collins says they’re not without precedent. Previously, people have successfully brought claims against companies that manufacture things like guns and lead paint.

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“It’s always a bit more difficult to hold manufacturers liable for environmental harm,” she says, but “the opioids case just made the point in one very major trial that manufacturers can, in fact, be held liable on public nuisance for the damage their products cause — particularly where they’ve aggressively marketed the product and withheld information about its risks.”

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As the Canadian law professors’ open letter puts it: “Litigation is an appropriate response to a history of corporate deception.”

Companies knew their products were causing harm, the letter says, “but chose to expand their production and profits while misleading the public and lobbying against climate action.”

They’re still doing that, says Stewart, of Greenpeace Canada, which is why he pushes back at the idea that regulation — not litigation — is the solution.

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“The oil industry in this country is so rich and so powerful they have a disproportionate influence and courts can help level that playing field.”

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